Exercising discretion
KXXH v Minister [2022] FCAFC 111 is another case of a Kiwi with a character cancellation problem. This case was about whether or not the interests of his grandchildren had been properly considered and highlights the difficulties in trying to find a jurisdictional error amongst Tribunal reasons. I let some of the paragraphs from the judgment speak for themselves…
- This is a case where, to adapt the words of the Court in Navoto, it is necessary to make a decision as a matter of impression, including by inferences to be drawn from the manner in which the appellant’s case unfolded before the Tribunal and the structure, tone and content of its reasons. While it is not straightforward to determine whether the reasons here fall ‘on the wrong side of the line’, on balance we consider that they did not. Two principles emerging from the summary above are particularly important to that conclusion. The first is that it is the reality of the consideration that is important, not necessarily the manner in which it is (or is not) expressed. The second is that the degree of consideration required depends on the centrality of the matter to the issues that arise in the review………
- In light of all that, the brevity with which the Tribunal dealt with the interests of MS’s grandchildren at paragraphs 134 and 135 is unsurprising. It does not by itself bespeak any failure to read, identify, understand and evaluate the material that was before it as to those interests. It is more likely to reflect a decision by the Tribunal to give little weight to those interests in the context of the matter as a whole. The Tribunal explicitly said that this is what it had decided to do. That decision was open to the Tribunal….
- It is true that there are aspects of paragraphs 134 and 135 of the Tribunal’s decision that are problematic. They appear to give priority to the interests of the nieces and nephews over those of MS’s grandchildren, although it had no information whatsoever about the interests of the former, even information about whether they were indeed children………
- The Tribunal’s written reasons were, with respect, deficient in that regard. But in light of the matters canvassed above, these are deficiencies in expression, rather than an absence of real consideration of the interests of MS’s grandchildren. They do not constitute error of a kind that the Parliament is to be taken to intend to invalidate the Tribunal’s exercise of power under s 501CA(4) of the Act. Therefore, the primary judge was correct to conclude that the appellant had not established jurisdictional error in relation to the Tribunal’s consideration of the interests of MS’s grandchildren. The appeal should be dismissed, with costs.
Creative commons acknowledgment for the photograph.
